j u d g m e n t a.s. bopanna,j. - supreme court of india · assailing the final order dated...

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

(CRIMINAL APPEAL NO.1831/2019) (Arising out of S.L.P.(Criminal) No.10493 of 2019 )

P. Chidambaram ….Appellant (s)

Versus

Directorate of Enforcement …. Respondent(s)

J U D G M E N T

A.S. Bopanna,J.

Leave granted. 2. The instant appeal has been filed by the appellant

assailing the final order dated 15.11.2019 passed by the

High Court of Delhi at New Delhi in Bail Application No.

2718 of 2019 whereby the High Court declined to grant

regular bail to the appellant.

3. The genesis of the case in question lies in FIR No.

RC2202017-E0011 dated 15.5.2017, registered by the CBI

under section 120-B r/w 420 IPC and sections 8 and 13

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(2) r/w 13 (1) (d) of PC Act against some known and

unknown suspects with allegations that M/s INX Media

Private Limited (accused no. 1 in the FIR) sought approval

of Foreign Investment Promotion Board (FIPB) for

permission to issue by way of preferential allotment,

certain equity and convertible, non-cumulative,

redeemable preference shares for engaging in the business

of creating, operating, managing and broadcasting of

bouquet of television channels. The company had also

sought approval to make a downstream financial

investment to the extent of 26% of the issued and

outstanding equity share capital of M/s INX News Private

Limited (accused no. 2). The FIPB Board recommended the

proposal of INX Media for consideration and approval of

the Finance Minister. However, the Board did not approve

the downstream investment by INX Media (P) Ltd. in INX

News (P) Ltd. Further, in the press release dated

30.5.2007 issued by the FIPB Unit indicating details of

proposals approved in the FIPB meeting, quantum of

FDI/NRI inflow against M/s INX media was shown as Rs.

4.62 crores. Contrary to the approval of FIPB, M/s INX

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Media Pvt. Ltd. deliberately and in violation of conditions

of approval, made a downstream investment to the extent

of 26% capital of INX News and also generated more than

Rs. 305 crores FDI in INX Media (P) Ltd. against the

approved foreign inflow of Rs. 4.62 crores is the allegation.

A complaint is stated to have been received by the

investigation wing of the Income Tax department which

sought clarifications from the FIPB Unit of Ministry of

Finance. The FIPB Unit vide letter dated 26.5.2008,

sought clarifications from M/s INX Media Limited. It was

further alleged in the FIR that upon receipt of this letter,

M/s INX Media in order to avoid punitive action entered

into criminal conspiracy with Mr. Karti Chidambaram

(accused no. 3 in the FIR who is the son of the appellant).

Mr. Karti Chidambaram is alleged to have exercised his

influence over the officials of FIPB unit which led to the

said officials showing undue favour to M/s INX News (P)

Ltd. Thereafter by deliberately concealing the investment

received in INX Media (P) Ltd., M/s INX News (P) Ltd. again

approached the FIPB Unit and sought permission for the

downstream investment. This proposal was favourably

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considered by the officials of ministry of finance and

approved by the then Finance Minister. It was also stated

in the FIR that Mr. Karti Chidambaram, in lieu of services

rendered to M/s INX Group, received consideration in the

form of payments. Information disclosed that invoices for

approximately Rs. 3.5 crores were got raised in favour of

M/s INX Group in the name of companies in which Mr.

Karti Chidambaram was having sustainable interests

either directly or indirectly. The appellant herein, who was

the then Union Finance Minister, was not however named

in the said FIR.

4. On the basis of the aforementioned FIR, the

Respondent Directorate of Enforcement registered a case

ECIR/07/HIU/2017 (hereinafter referred to as ECIR case)

under section 3 of Prevention of Money Laundering Act,

2002 (hereinafter PMLA), punishable under section 4 of

the said Act against the accused mentioned in the FIR.

The allegations in the said ECIR case were the same as

those in the aforementioned FIR. The appellant was not

named an accused in this case as well.

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5. On 23.7.2018, apprehending his arrest by the

Respondent, the appellant filed an application before the

High Court of Delhi seeking grant of anticipatory bail in

the aforementioned ECIR case. The High Court extended

interim protection to the appellant until 20.8.2019, when

the appellant’s application seeking anticipatory bail was

dismissed.

6. The appellant then approached this court by filing

Criminal Appeal No. 1340 of 2019 (arising out of SLP (Crl.)

No. 7523 of 2019) wherein while dismissing the appeal of

the appellant, the court concluded that in the instant

case, grant of anticipatory bail to the appellant will

hamper the investigation and that this is not a fit case for

exercise of discretion to grant anticipatory bail. This court

applied the following rationale for coming to the said

conclusion: there are sufficient safeguards enshrined in

the PMLA to ensure proper exercise of power of arrest;

grant of anticipatory bail is not to be done as a matter of

rule, especially in matters of economic offences which

constitute a class apart. Regard must be had to the fact

that grant of anticipatory bail at the stage of investigation

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may frustrate the investigating agency in interrogating the

accused and in collecting useful information and also

materials which might have been concealed.

7. In the meanwhile, on 21.8.2019, the appellant was

arrested in the CBI case (arising out of the

above-mentioned FIR). Since then he has been in custody.

In the ECIR case, he was arrested on 16.10.2019 on the

grounds that payment of approx. Rs. 3 crores was made at

the appellant’s instance to the companies controlled by his

son on account of FIPB work done for INX Group. Further

it was stated in the grounds of arrest that the investigation

is not fruitful due to the appellant’s non-cooperation; the

appellant has withheld relevant information which is

within his exclusive knowledge and thus his custodial

interrogation is necessary.

8. After dismissal of his application seeking

anticipatory bail by this court, the appellant moved an

application dated 5.9.2019 praying to surrender before the

Trial Court (Court of Special Judge (PC Act), CBI) in the

ECIR case. This application was rejected on 13.9.2019 in

view of the submission on behalf of the respondent

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Directorate that it was not willing to arrest the appellant

at that particular stage since it was completing

investigation pertaining to some aspect of the money

laundering and only on this background investigation was

completed, the interrogation of the appellant would be

meaningful. Thereafter, on 11.10.2019, the Respondent

Directorate moved an application u/s 267 CrPC seeking

issuance of production warrant against the appellant for

the purpose of arrest and remand. The allegations which

were levelled against the appellant in this application are

that in lieu of granting FIPB approval to INX Media Pvt.

Ltd., he and his son received a sum of approx. Rs. 3 crores

through companies controlled by the son of the

Appellant/accused Karti P. Chidambaram. Though INX

media in its application did not mention the total amount

of FDI inflow which they intended to bring, the appellant

without ascertaining their competency, granted approval.

Further the appellant became fully aware about the

violations made by INX Group when the matter was

highlighted by the Income Tax Department and a

complaint was also received by him regarding the

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investment by M/s INX Media into M/s INX News without

due approval. Despite this knowledge, the appellant again

approved the downstream proposal of INX Group treating

it as a fresh approval. Further investigation has revealed

that there were at least 17 overseas bank accounts opened

by the appellant and co-conspirators. In this regard,

summons was issued to 11 persons and statements of

some of these persons revealed that the overseas assets

were acquired in the name of various shell companies on

the instructions of appellant’s son. Thus, it was stated

that a need arises to confront the appellant with the

material gathered. This application was allowed by the

Trial Court vide order dated 11.10.2019. Thereafter on

14.10.2019, the Respondent inter alia moved an

application seeking permission to arrest the appellant. The

Trial Court treated this application as an application for

interrogation of the appellant and allowed it.

Subsequently, on 16.10.2019, the appellant was arrested

for the grounds stated supra. Vide order dated

17.10.2019, the Trial Court remanded the appellant to the

custody of the Respondent for a period of 7 days.

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9. After his arrest, on 23.10.2019, the appellant

moved a regular bail application (Bail Application No.

2718 of 2019) before the High Court u/s 439 of CrPC

averring that he is a law abiding citizen having deep roots

in the society; he is not a flight risk and is willing to abide

by all conditions as may be imposed by the court while

granting bail. It was also submitted that the instant case

is a documentary case and being a respectable citizen and

former Union Minister, he cannot and will not tamper with

the documentary record of the instant case which is

currently in the safe and secure possession of the

incumbent government or the Trial Court. On merits, it

was stated by the Appellant that he merely accorded

approval to the unanimous recommendation made by the

FIPB which was chaired by the Secretary, Economic

Affairs and included 5 other secretaries who were all

among the senior most IAS officers (one among them was

a senior IFS officer) and had a long and distinguished

record of service. Anyone familiar with the working of the

FIPB would know that no single officer can take a decision

on any proposal. Therefore, it is preposterous to allege

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that any person could have influenced any official of FIPB,

including all 6 senior secretaries to the Government of

India. Moreover, the ECIR case is a verbatim copy of the

FIR dated 15.5.2017 and allegations registered therein

and thus the Special Judge erred in granting remand of

the appellant in the ECIR case since the offences allegedly

committed in both the cases arise out of the same

occurrence and have been committed in the course of the

same transaction. Further the Special Court committed an

error in not accepting the surrender application of the

appellant which was an application limited to

surrendering before the Trial Court. The Special Court

proceeded on an erroneous basis that the desire of an

accused is contingent upon the desire of the investigating

agency to arrest the accused and that arrest is a condition

precedent for surrendering before the Court.

10. Vide the impugned order, the High Court observed

that it has not even been alleged by the Respondent

Enforcement Directorate in its counter affidavit that the

appellant is a flight risk. Regarding tampering of evidence

also the court observed that it is neither argued nor any

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material is available on record in this regard. Moreover,

there is no chance to tamper the material on record as the

same is with the investigating agencies, central

government or courts. Regarding influencing of witnesses,

the court noted that three witnesses have stated in their

statements that the appellant and his family members

have pressurised them and asked them not to appear

before the Enforcement Directorate. However, since their

statements have already been recorded, at this stage when

the complaint is almost ready to be filed, the Court held

that there is no chance to influence any witness. The High

Court also took notice of the fact that co-accused have

been granted bail. The Court was cognizant of the fact that

the appellant has been suffering from illness but the Court

opined that the Court has already issued directions to the

Jail Superintendent in this regard and therefore this

ground is no longer available to the appellant at this stage.

The Court noted that during investigation, it has been

revealed that there has been layering of proceeds of crime

by use of shell companies, most of which are only on

paper, and opined that there is cogent evidence collected

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so far that these shell companies are incorporated by

persons who can be shown to be close and connected with

the appellant. Next, the Court held that the material in the

present case is completely distinct, different and

independent from the material which was collected by the

CBI in the predicate offence. Even the witnesses in the

PMLA investigation are different from the investigation

conducted by the CBI. The High Court concluded that

prima facie, allegations are serious in nature and the

appellant has played key and active role in the present

case. On the basis of all these observations, the High

Court dismissed the bail application.

11. It is the contention of the learned senior counsel

Shri Kapil Sibal and Dr. Abhishek Manu Singhvi on behalf

of the appellant before us that the High Court ought to

have granted regular bail to the appellant after holding the

triple test of flight risk, tampering with evidence and

influencing of witnesses in favour of the appellant. The

Impugned Order deserves to be set aside only on the

ground that the allegations of a completely unrelated case

(Rohit Tandon vs. Directorate of Enforcement (2018)

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11 SCC 46) have been considered by the High Court as

allegations relating to the instant case and findings on

merits against the appellant have been rendered based on

such unrelated allegations. Next, it has been contended by

the appellant that the High Court erred in law in going

into and rendering findings on merits of the case in order

to deny bail to the appellant despite the settled position of

law that merits of a case ought not to be gone into at the

time of adjudication of a bail application. This Court in the

appellant’s own case seeking regular bail in the case

registered by CBI against him titled P. Chidambaram vs.

CBI (Crl. Appeal No. 1603/2019) has held that “at the

stage of granting bail, an elaborate examination of

evidence and detailed reasons touching upon the merit of

the case, which may prejudice the accused, should be

avoided.” It has also been contended on behalf of the

appellant that the High Court erred in accepting at face

value the allegations made on merits of the case in the

counter affidavit filed by the respondent and converting

such allegations verbatim into findings by the Court and

declining to grant bail to the appellant solely on the basis

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of said findings. On merits, the appellant has submitted

that he is neither a shareholder nor director of any

allegedly connected company nor does he have any

connection with any of these companies. No material

linking the appellant directly or indirectly with the alleged

offence of money laundering has either been put to the

appellant so far or been placed on record before the High

Court. Further, the 12 officers who signed the file

pertaining to the approval of the FDI proposal of INX

Media were not even arrested. Only the appellant, who

was the 13th signatory has been arrested and denied bail.

Moreover, all the other co-accused in the instant ECIR

case have also been granted bail or have not been

arrested. The High Court also failed to appreciate that the

appellant has already been granted regular bail by this

Court in the predicate offence FIR vide its order dated

22.10.2019. The High Court erred in denying bail to the

appellant on the specious ground that allegations are of a

serious nature. It is the submission of the learned senior

counsel for the appellant that the gravity of an offence is

to be determined from the severity of the prescribed

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punishment. In the instant case, the alleged offence of

money laundering is punishable by imprisonment for a

term which shall not exceed 7 years. Thus, the offence is

not ‘grave’ or ‘serious’ in terms of the judgment of this

Court in Sanjay Chandra vs. CBI, (2012) 1 SCC 40. The

High Court should also have considered that the appellant

is a 74 year old person whose health is fragile and while

being lodged in judicial custody of the Respondent

Enforcement Directorate between 16.10.2019 and

30.10.2019 and thereafter being lodged in judicial custody

between 30.10.2019 till date, the appellant has suffered

multiple bouts of chronic and persistent pain in his

abdomen, for which he was taken to AIIMS and Dr. Ram

Manohar Lohia Hospital on various occasions (viz. On

23.10.2019, 26.10.2019, 28.10.2019, 30.10.2019 and

1.11.2019) for consultation, diagnosis and tests. The

appellant’s health continues to deteriorate and with the

onset of the cold weather, the appellant will become more

vulnerable.

12. Between 05.09.2019 and 16.10.2019 though the

appellant was available in custody the respondent did not

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choose to interrogate but remand period was sought on

17.10.2019 and 24.10.2019, while the third remand

sought was rejected and accordingly the remand period

expired on 30.10.2019. No witness was confronted

despite seeking remand for that purpose. It is contended

that the very manner in which the whole process is being

conducted is only to see that the appellant remains in

custody. It is contended that the liberty of the appellant

cannot be denied in such manner by adopting an unfair

procedure. Though much is sought to be made out as if

the offence committed is grave there is absolutely no

material to indicate that the appellant is involved and even

otherwise it is a matter of trial wherein the charge is to be

established. The gravity can only beget the length of

sentence provided in law and by asserting that the offence

is grave, the grant of bail cannot be thwarted. The

respondent cannot contend as if the appellant should

remain in custody till the trial is over.

13. Shri Tushar Mehta, learned Solicitor General while

seeking to oppose the petition has made reference to the

counter affidavit filed on behalf of the respondent. It is

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contended that though the High Court has held that there

is no possibility of tampering the evidence and has not

influenced any witnesses and has ultimately denied the

bail, such conclusion is not justified. It is contended that

the appellant having held a very high position and also

due to his status is likely to influence the witnesses and

one of the witness had already indicated that he hails from

the same State to which the appellant belongs and is not

in a position to appear for the purpose of being

confronted. Hence even in that regard it should be held

against the appellant. It is further contended that even

otherwise despite holding the triple test in favour of the

appellant the gravity of the offence can be considered as a

stand-alone aspect as the gravity of the offence in a

particular case is also important while considering bail. In

that circumstance, the three aspects to be taken note is

the manner in which the offence has taken place, gravity

of the offence and also the contemporaneous documents

to show that the accused either in custody or otherwise,

wields influence over the witnesses. Hence, he contends

that the finding of the High Court insofar as saying that

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the appellant has not tampered is factually incorrect. The

learned Solicitor General further contends that the

economic offences are graver offences which affect the

society and the community suffers. The common man

loses confidence in the establishment. It is contended that

the Investigating Agency has collected documentary

evidence such as emails exchanged between the

co-conspirators on behalf of the appellant and documents

to indicate investment of laundered money in benami

properties whose beneficial owners can be traced to the

appellant and his family members. The respondent has

also recorded the statement of material witnesses who are

the part of process of money laundering. It is his

contention that the appellant has knowledge of all these

aspects and the material will show the share holding

pattern of the 16 companies. It is further contended that

the learned Judge of the High Court has referred to the

documents produced in a sealed cover and in that light

has arrived at the conclusion to deny bail. The High Court

has, however, not properly considered while recording that

a complaint is ready to be filed and therefore, he would

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not influence the witnesses. Even if the complaint/charge

sheet is filed in 60 days it is only to avoid default and the

investigation which is not complete would continue. In

that light it is contended that when economic offences are

premeditated it would require detailed investigation to

unearth material and, in such circumstances, if bail is

granted it would defeat the case of the prosecution. The

learned Solicitor General has also referred to the decisions

which would be taken note at the appropriate stage.

14. The learned senior counsel for the appellant in

reply to the submissions contended that not a single

document is available to indicate that the appellant is

involved in the offence. The allegation of the appellant

tampering the evidence or influencing the witnesses as

sought to be made out on behalf of the respondent cannot

be accepted for the reason that the alleged offence is of the

year 2007-08 and though the proceedings were initiated in

the year 2017, the appellant was arrested only in the year

2019. In such event when the appellant has not

influenced any person while he was at large, the allegation

of tempering while in custody is not acceptable. The

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statement of the alleged witnesses is stated to have been

recorded in the year 2018 and the case of the respondent

that they are seeking to confront the witnesses is being

put forth at this stage only to indicate as if the custody of

the appellant is still required by them. When there is no

document to indicate that the appellant is involved, the

mere allegation against the alleged co-conspirators cannot

be the basis to indicate that an economic offence has been

committed by the appellant. In that light it is contended

that the prayer made in the petition be accepted.

15. Though we have heard the matter elaborately and

also have narrated the contention of both sides in great

detail including those which were urged on the merits of

the matter we are conscious of the fact that in the instant

appeal the consideration is limited to the aspect of regular

bail sought by the appellant under Section 439 of Cr.PC.

While stating so, in order to put the matter in perspective

it would be appropriate to take note of the observation

made by us in the case of this very appellant vs. CBI, in

Criminal Appeal No. 1603/2019 which reads as

hereunder;

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“The jurisdiction to grant bail has to be exercised on thebasis of the well-settled principles having regard to thefacts and circumstances of each case. The followingfactors are to be taken into consideration whileconsidering an application for bail:- (i) the nature ofaccusation and the severity of the punishment in thecase of conviction and the nature of materials reliedupon by the prosecution; (ii) reasonable apprehension oftampering with the witnesses or apprehension of threatto the complainant or the witnesses; (iii) reasonablepossibility of securing the presence of the accused at thetime of trial or the likelihood of his abscondence; (iv)character behaviour and standing of the accused andthe circumstances which are peculiar to the accused; (v)larger interest of the public or the State and similarother considerations (vide Prahlad Singh Bhati v. NCT,Delhi and another (2001) 4 SCC 280. There is no hardand fast rule regarding grant or refusal to grant bail.Each case has to be considered on the facts andcircumstances of each case and on its own merits. Thediscretion of the court has to be exercised judiciouslyand not in an arbitrary manner.”

16. In the above background, perusal of the order

dated 15.11.2019 impugned herein indicates that the

learned Single Judge having taken note of the rival

contentions in so far as the triple test or the tripod test to

be applied while considering an application for grant of

regular bail under Sec. 439 Cr.PC, has answered the same

in paragraphs 50 to 53 of the order, in favour of the

appellant herein. The learned Solicitor General has

however sought to contend that though there is not much

grievance with regard to the conclusion on ‘flight risk’, the

finding on likelihood of tampering and influencing witness

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has not been considered in its correct perspective. The

finding in that regard has not been assailed and in such

event, the appellant in our opinion cannot be taken by

surprise. Even otherwise as rightly observed by the

learned Single Judge the evidence and material stated to

have been collected is already available with the

Investigating agency. Learned Solicitor General would

however contend that still further materials are to be

collected and letter rogatory has been issued and as such

tampering cannot be ruled out. In the present situation

the appellant is not in political power nor is he holding

any post in the Government of the day so as to be in a

position to interfere. In that view such allegation cannot

be accepted on its face value. With regard to the witness

having written that he is not prepared to be confronted as

he is from the same state, the appellant cannot be held

responsible for the same when there is no material to

indicate that the appellant or anyone on his behalf had

restrained or threatened the concerned witness who

refused to be confronted with the appellant in custody.

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17. The only other aspect therefore for consideration is

as to whether the further consideration made by the

learned Judge of the High Court, despite holding the triple

test in appellant’s favour was justified and if consideration

is permissible, whether the learned Judge was justified in

his conclusion.

18. While opposing the contention put forth by the

learned Senior Counsel for the appellant that the learned

Judge of the High Court ought not to have travelled

beyond the consideration on the triple test and holding it

in favour of the appellant, the learned Solicitor General

would contend that the gravity of the offence and the role

played by the accused should also be a part of

consideration in the matter of bail. It is contended by the

learned Solicitor General that the economic offences is a

class apart and the gravity is an extremely relevant factor

while considering bail. In order to contend that this

aspect has been judicially recognised, the decisions in the

case of State of Bihar & Anr. vs. Amit Kumar, (2017)

13 SCC 751; Nimmagadda Prasad vs. CBI, (2013) 7 SCC

466; CBI vs. Ramendu Chattopadhyay, Crl

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Appeal.No.1711 of 2019; Seniors Fraud Investigation

Office vs. Nittin Johari & Anr.; (2019) 9 SCC 165; Y.S.

Jagan Mohan Reddy vs. CBI, (2013) 7 SCC 439; State

of Gujarat vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC

364 are relied upon. Perusal of the cited decisions would

indicate that this Court has held that economic offences

are also of grave nature, being a class apart which arises

out of deep-rooted conspiracies and effect on the

community as a whole is also to be kept in view, while

consideration for bail is made.

19. On the consideration as made in the above noted

cases and the enunciation in that regard having been

noted, the decisions relied upon by the learned senior

counsel for the appellant and the principles laid down for

consideration of application for bail will require our

consideration. The learned senior counsel for the

appellant has relied upon the decision of the Constitution

Bench of this Court in the case of Shri Gurbaksh Singh

Sibbia vs. State of Punjab, (1980) 2 SCC 565 with

reference to paragraph 27 which reads as hereunder:

“ It is not necessary to refer to decisions whichdeal with the right to ordinary bail because that

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right does not furnish an exact parallel to the rightto anticipatory bail. It is, however, interesting thatas long back as in 1924 it was held by the HighCourt of Calcuttain Nagendra v. King-Emperor [AIR 1924 Cal 476,479, 480 : 25 Cri LJ 732] that the object of bail isto secure the attendance of the accused at thetrial, that the proper test to be applied in thesolution of the question whether bail should begranted or refused is whether it is probable thatthe party will appear to take his trial and that it isindisputable that bail is not to be withheld as apunishment. In two other cases which,significantly, are the ‘Meerut Conspiracy cases’observations are to be found regarding the rightto bail which deserve a special mention. In K.N.Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ94] it was observed, while dealing with Section498 which corresponds to the present Section 439of the Code, that it conferred upon the SessionsJudge or the High Court wide powers to grant bailwhich were not handicapped by the restrictions inthe preceding Section 497 which corresponds tothe present Section 437. It was observed by thecourt that there was no hard and fast rule and noinflexible principle governing the exercise of thediscretion conferred by Section 498 and that theonly principle which was established was that thediscretion should be exercised judiciously.In Emperor v. Hutchinson [AIR 1931 All 356, 358 :32 Cri LJ 1271] it was said that it was very unwiseto make an attempt to lay down any particularrules which will bind the High Court, havingregard to the fact that the legislature itself left thediscretion of the court unfettered. According tothe High Court, the variety of cases that mayarise from time to time cannot be safely classifiedand it is dangerous to make an attempt to classifythe cases and to say that in particular classes abail may be granted but not in other classes. Itwas observed that the principle to be deducedfrom the various sections in the CriminalProcedure Code was that grant of bail is the ruleand refusal is the exception. An accused personwho enjoys freedom is in a much better positionto look after his case and to properly defendhimself than if he were in custody. As apresumably innocent person he is thereforeentitled to freedom and every opportunity look

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after his own case. A presumably innocent personmust have his freedom to enable him to establishhis innocence.”

We have taken note of the said decision since even though

the consideration therein was made in the situation where

an application for anticipatory bail under Section 438 was

considered, the entire conspectus of the matter relating to

bail has been noted by the Constitution Bench.

20. The learned senior counsel for the appellant has

also placed reliance on the decision on the decision in the

case of Sanjay Chandra vs. CBI, (2012) 1 SCC 40 with

specific reference to paragraph 39 which reads as

hereunder:

“ Coming back to the facts of the present case,both the courts have refused the request for grantof bail on two grounds: the primary ground is thatthe offence alleged against the accused persons isvery serious involving deep-rooted planning inwhich, huge financial loss is caused to the Stateexchequer; the secondary ground is that of thepossibility of the accused persons tampering withthe witnesses. In the present case, the charge isthat of cheating and dishonestly inducing deliveryof property and forgery for the purpose of cheatingusing as genuine a forged document. Thepunishment for the offence is imprisonment for aterm which may extend to seven years. It is, nodoubt, true that the nature of the charge may berelevant, but at the same time, the punishment towhich the party may be liable, if convicted, alsobears upon the issue. Therefore, in determiningwhether to grant bail, both the seriousness of the

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charge and the severity of the punishment shouldbe taken into consideration.”

The said case was a case of financial irregularities and in

the said circumstance this Court in addition to taking note

of the deep-rooted planning in causing huge financial loss,

the scope of consideration relating to bail has been taken

into consideration in the background of the term of

sentence being seven years if convicted and in that regard

it has been held that in determining the grant or otherwise

of bail, the seriousness of the charge and severity of the

punishment should be taken into consideration.

21. Thus from cumulative perusal of the judgments

cited on either side including the one rendered by the

Constitution Bench of this Court, it could be deduced

that the basic jurisprudence relating to bail remains the

same inasmuch as the grant of bail is the rule and refusal

is the exception so as to ensure that the accused has the

opportunity of securing fair trial. However, while

considering the same the gravity of the offence is an

aspect which is required to be kept in view by the Court.

The gravity for the said purpose will have to be gathered

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from the facts and circumstances arising in each case.

Keeping in view the consequences that would befall on the

society in cases of financial irregularities, it has been held

that even economic offences would fall under the category

of “grave offence” and in such circumstance while

considering the application for bail in such matters, the

Court will have to deal with the same, being sensitive to

the nature of allegation made against the accused. One of

the circumstances to consider the gravity of the offence is

also the term of sentence that is prescribed for the offence

the accused is alleged to have committed. Such

consideration with regard to the gravity of offence is a

factor which is in addition to the triple test or the tripod

test that would be normally applied. In that regard what

is also to be kept in perspective is that even if the

allegation is one of grave economic offence, it is not a rule

that bail should be denied in every case since there is no

such bar created in the relevant enactment passed by the

legislature nor does the bail jurisprudence provides so.

Therefore, the underlining conclusion is that irrespective

of the nature and gravity of charge, the precedent of

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another case alone will not be the basis for either grant or

refusal of bail though it may have a bearing on principle.

But ultimately the consideration will have to be on case to

case basis on the facts involved therein and securing the

presence of the accused to stand trial.

22. In the above circumstance it would be clear that

even after concluding the triple test in favour of the

appellant the learned Judge of the High Court was

certainly justified in adverting to the issue relating to the

gravity of the offence. However, we disapprove the manner

in which the conclusions are recorded in paragraphs 57 to

62 wherein the observations are reflected to be in the

nature of finding relating to the alleged offence. The

learned senior counsel for the appellant with specific

reference to certain observations contained in the above

noted paragraphs has pointed out that the very

contentions to that effect as contained in paragraphs 17,

20 and 24 of the counter affidavit has been incorporated

as if, it is the findings of the Court. The learned Solicitor

General while seeking to controvert such contention would

however contend that in addition to the counter affidavit

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the respondent had also furnished the documents in a

sealed cover which was taken note by the learned Judge

and conclusion has been reached.

23. The question as to whether the Court could look

into the documents while considering an application for

bail had arisen for consideration in the very case between

the parties herein in Criminal Appeal No.130/2019

wherein through the judgment dated 05.09.2019 while

considering the matter relating to the order dated

20.08.2019 whereby the High Court had rejected the bail,

this Court had held that it would be open for the Court to

receive the materials/documents collected during the

investigation and peruse the same to satisfy its conscience

that the investigation is proceeding in the right lines and

for the purpose of consideration of grant of

bail/anticipatory bail etc. At the same time, this Court,

had disapproved the manner in which the learned Judge

of the High Court in the said case had verbatim quoted a

note produced by the respondent. If that be the position,

in the instant case, the learned Judge while adverting to

the materials, ought not have recorded a finding based on

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the materials produced before him. While the learned

Judge was empowered to look at the materials produced in

a sealed cover to satisfy his judicial conscience, the

learned Judge ought not to have recorded finding based on

the materials produced in a sealed cover. Further while

deciding the same case of the appellant in Crl. Appeal

No.1340 of 2019, after holding so, this Court had

consciously refrained from opening the sealed cover and

perusing the documents lest some observations are made

thereon after perusal of the same, which would prejudice

the accused pre-trial. In that circumstance though it is

held that it would be open for the Court to peruse the

documents, it would be against the concept of fair trial if

in every case the prosecution presents documents in

sealed cover and the findings on the same are recorded as

if the offence is committed and the same is treated as

having a bearing for denial or grant of bail.

24. Having said so, in present circumstance we were

not very much inclined to open the sealed cover although

the materials in sealed cover was received from the

respondent. However, since the learned Single Judge of

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the High Court had perused the documents in sealed

cover and arrived at certain conclusion and since that

order is under challenge, it had become imperative for us

to also open the sealed cover and peruse the contents so

as to satisfy ourselves to that extent. On perusal we have

taken note that the statements of persons concerned have

been recorded and the details collected have been collated.

The recording of statements and the collation of material

is in the nature of allegation against one of the co-accused

Karti Chidambaram- son of appellant of opening shell

companies and also purchasing benami properties in the

name of relatives at various places in different countries.

Except for recording the same, we do not wish to advert to

the documents any further since ultimately, these are

allegations which would have to be established in the trial

wherein the accused/co-accused would have the

opportunity of putting forth their case, if any, and an

ultimate conclusion would be reached. Hence in our

opinion, the finding recorded by the learned Judge of the

High Court based on the material in sealed cover is not

justified.

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25. Therefore, at this stage while considering the bail

application of the appellant herein what is to be taken

note is that, at a stage when the appellant was before this

Court in an application seeking for interim

protection/anticipatory bail, this Court while considering

the matter in Criminal Appeal No.1340/2019 had in that

regard held that in a matter of present nature wherein

grave economic offence is alleged, custodial interrogation

as contended would be necessary and in that

circumstance the anticipatory bail was rejected.

Subsequently the appellant has been taken into custody

and has been interrogated and for the said purpose the

appellant was available in custody in this case from

16.10.2019 onwards. It is, however, contended on behalf

of the respondent that the witnesses will have to be

confronted and as such custody is required for that

purpose. As noted, the appellant has not been named as

one of the accused in the ECIR but the allegation while

being made against the co-accused it is indicated the

appellant who was the Finance Minister at that point, has

aided the illegal transactions since one of the co-accused

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is the son of the appellant. In this context even if the

statements on record and materials gathered are taken

note, the complicity of the appellant will have to be

established in the trial and if convicted, the appellant will

undergo sentence. For the present, as taken note the

anticipatory bail had been declined earlier and the

appellant was available for custodial interrogation for

more than 45 days. In addition to the custodial

interrogation if further investigation is to be made, the

appellant would be bound to participate in such

investigation as is required by the respondent. Further it

is noticed that one of the co-accused has been granted bail

by the High Court while the other co-accused is enjoying

interim protection from arrest. The appellant is aged

about 74 years and as noted by the High Court itself in its

order, the appellant has already suffered two bouts of

illness during incarceration and was put on antibiotics

and has been advised to take steroids of maximum

strength. In that circumstance, the availability of the

appellant for further investigation, interrogation and

facing trial is not jeopardized and he is already held to be

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not a ‘flight risk’ and there is no possibility of tampering

the evidence or influencing\intimidating the witnesses.

Taking these and all other facts and circumstances

including the duration of custody into consideration the

appellant in our considered view is entitled to be granted

bail. It is made clear that the observations contained

touching upon the merits either in the order of the High

Court or in this order shall not be construed as an opinion

expressed on merits and all contentions are left open to be

considered during the course of trial.

26. For the reasons stated above, we pass the

following order:

i) The instant appeal is allowed and the judgment

dated 15.11.2019 passed by the High Court of Delhi in

Bail Application No.2718 of 2019 impugned herein is set

aside;

ii) The appellant is ordered to be released on bail if he

is not required in any other case, subject to executing bail

bonds for a sum of Rs.2 lakhs with two sureties of the like

sum produced to the satisfaction of the learned Special

Judge;

iii) The passport ordered to be deposited by this Court

in the CBI case shall remain in deposit and the appellant

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shall not leave the country without specific orders to be

passed by the learned Special Judge.

iv) The appellant shall make himself available for

interrogation in the course of further investigation as and

when required by the respondent.

v) The appellant shall not tamper with the evidence or

attempt to intimidate or influence the witnesses;

vi) The appellant shall not give any press interviews nor

make any public comment in connection with this case

qua him or other co-accused.

vii) There shall be no order as to costs.

….…………………….….J.(R. BANUMATHI)

..….……………………….J. (A.S. BOPANNA)

…..……………………….J. (HRISHIKESH ROY)

New Delhi,December 04, 2019

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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1831/2019 (Arising out of S.L.P.(Criminal) No.10493 of 2019 )

P. Chidambaram ….Appellant (s)Versus

Directorate of Enforcement …. Respondent(s)

O R D E R

After pronouncement of the Judgment in the above

mentioned matter, Mr. Tushar Mehta, learned Solicitor

General appearing for the respondent-Directorate of

Enforcement, has submitted that the findings in the

Judgment may not have a bearing qua the other accused.

Considering the above submission, we make it

clear that the findings in the Judgment, as above,

shall not have any bearing qua the other accused in

the case and the same shall be considered

independently on its own merits.

….…………………….….J. (R. BANUMATHI)

..….……………………….J. (A.S. BOPANNA)

…..……………………….J. (HRISHIKESH ROY)

New Delhi,December 04, 2019

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